De­ci­sion may help end dis­crim­i­na­tion against gays and les­bians in other mat­ters, ex­perts say.

Los Angeles Times - - FRONT PAGE - By David G. Sav­age and Ti­mothy M. Phelps

WASHINGTON — The Supreme Court’s his­toric rul­ing Fri­day grant­ing gays and les­bians an equal right to marry na­tion­wide puts an ex­cla­ma­tion point on a pro­found shift in law and public at­ti­tudes, and cre­ates the most sig­nif­i­cant and con­tro­ver­sial new con­sti­tu­tional lib­erty in more than a gen­er­a­tion.

Though the court’s 5- 4 opin­ion is tightly fo­cused on the ques­tion of same- sex unions, its broad word­ing and soar­ing rhetoric will re­ver­ber­ate be­yond the twodecade- long bat­tle for mar­riage equal­ity and al­most surely lead to the strik­ing down of any re­main­ing laws that di­rectly dis­crim­i­nate against peo­ple based on sex­ual ori­en­ta­tion.

The de­ci­sion was cheered by some as a long- over­due val­i­da­tion of a ba­sic hu­man right and con­demned by oth­ers as an ef­fort by lib­eral jus­tices to usurp states’ rights in or­der to re­solve a so­cial, not le­gal, is­sue.

The im­pact was im­me­di­ately felt by gay and les­bian cou­ples in the 13 mostly South­ern and Mid­west­ern states that still banned same- sex mar­riage. Such unions were al­ready le­gal in 37 states, in­clud­ing Cal­i­for­nia.

“No longer may this lib­erty be de­nied to them,” Jus­tice An­thony M. Kennedy wrote in the court’s opin­ion, declar­ing that gays and les­bians de­serve equal re­spect and dig­nity un­der the due process and equal pro­tec­tion clauses of the 14th Amend­ment. “No union is more pro­found than mar­riage, for it em­bod­ies the high­est ideals of love, f idelity, de­vo­tion, sac­ri­fice and fam­ily. In form­ing a mar­i­tal union, two peo­ple be­come some­thing greater than once they were.”

Same- sex cou­ples, he

wrote, “ask for equal dig­nity in the eyes of the law. The Con­sti­tu­tion grants them that right.”

Kennedy put the strug­gle for equal rights in a his­toric con­text, build­ing on the 1967 Lov­ing vs. Vir­ginia de­ci­sion that struck down in­ter­ra­cial- mar­riage bans and the gen­der- dis­crim­i­na­tion rul­ings of the 1970s, which elim­i­nated laws that gave wives lesser rights than hus­bands.

The court’s de­ci­sion — which comes al­most ex­actly 46 years to the day af­ter the Stonewall Inn ri­ots by gay protesters in New York’s Green­wich Vil­lage launched the mod­ern- day gay- rights move­ment — will likely ac­cel­er­ate the wave of ac­cep­tance of same- sex mar­riage. A ma­jor­ity of Amer­i­cans now sup­port same- sex mar­riage, a re­ver­sal from just a few years ago.

Be­cause of the shift in public opin­ion, it is un­clear whether the de­ci­sion will en­gen­der the last­ing con­tro­versy of cases such as Roe vs. Wade, which es­tab­lished a con­sti­tu­tional right to abor­tion, or be­come all but uni­ver­sally ac­cepted, as the Lov­ing rul­ing on in­ter­ra­cial mar­riage.

Kennedy, whose four ma­jor opin­ions on gay rights have ce­mented his legacy as the court’s strong­est voice against dis­crim­i­na­tion based on sex­ual ori­en­ta­tion, ac­knowl­edged that some parts of the coun­try may not be ready to ac­cept equal­ity for gays and les­bians.

“The na­ture of in­jus­tice is that we may not al­ways see it in our own times,” he wrote.

But he ar­gued the harm of deny­ing gays and les­bians the equal right to marry out­weighed ad­mo­ni­tions that the court move more slowly in or­der to give state leg­is­la­tures more time to ad­just their laws. “Dig­ni­tary wounds can­not al­ways be healed with the stroke of a pen,” he said.

In four sep­a­rate and blis­ter­ing dis­sents, con­serva- tive jus­tices heaped scorn on the ma­jor­ity opin­ion. “This court is not a leg­is­la­ture [ and] our Con­sti­tu­tion does not en­act any the­ory of mar­riage,” said Chief Jus­tice John G. Roberts Jr., who took the rare step of read­ing his dis­sent in court.

Some had thought Roberts might join the ma­jor­ity, but he wrote a 29- page dis­sent to say why he thought the mat­ter should be de­cided in the po­lit­i­cal arena.

“If you are among the many Amer­i­cans — of what­ever sex­ual ori­en­ta­tion — who fa­vor ex­pand­ing same­sex mar­riage, by all means celebrate to­day’s de­ci­sion,” he said. But he de­scribed it as an “act of will, not le­gal judg­ment.”

Jus­tice An­tonin Scalia, well- known for his vit­ri­olic dis­sents, called the opin­ion “a ju­di­cial Putsch,” “pre­ten- tious,” “ego­tis­tic,” “silly,” and filled with “strain­ing- tobe- mem­o­rable pas­sages.”

In un­usu­ally per­sonal terms even for Scalia, he mocked Kennedy’s open­ing sen­tence, say­ing he would sooner “hide my head in a bag” than join it.

“To­day’s de­cree says that my ruler, and the ruler of 320 mil­lion Amer­i­cans coast- to­coast, is a ma­jor­ity of the nine lawyers on the Supreme Court. The opin­ion in these cases is the fur­thest ex­ten­sion in fact — and the fur­thest ex­ten­sion one can even imag­ine — of the court’s claimed power to cre­ate ‘ lib­er­ties’ that the Con­sti­tu­tion and its amend­ments ne­glect to men­tion.”

Amid rain­bow f lags and joy­ous cel­e­bra­tions on the Supreme Court steps, James Oberge­fell, the lead plain­tiff in the case, took a con­grat­u­la­tory phone from Pres­i­dent Obama. Oberge­fell had sued the state of Ohio for re­fus­ing to rec­og­nize his mar­riage af­ter his hus­band, John Arthur, died of amy­otrophic lat­eral scle­ro­sis.

Obama lauded the rul­ing dur­ing re­marks in the White House Rose Gar­den, call­ing it a “vic­tory for Amer­ica.” He praised the per­sis­tence of same- sex mar­riage back­ers who took their fight to state­houses, court­houses and all the way to the Supreme Court. “Some­times,” he said, “there are days like this, when that slow, steady ef­fort is re­warded with jus­tice that ar­rives like a thun­der­bolt.”

Al­low­ing gay cou­ples to marry would strengthen com­mu­ni­ties by ex­tend­ing “the full prom­ise of Amer­ica to ev­ery Amer­i­can.… This de­ci­sion af­firms what mil­lions of Amer­i­cans al­ready be­lieve in their hearts: that when all Amer­i­cans are treated as equal, all are free,” the pres­i­dent said.

Jus­tices Ruth Bader Gins­burg, Stephen G. Breyer, So­nia So­tomayor and Elena Ka­gan joined with Kennedy to form the ma­jor­ity in Oberge­fell vs. Hodges. Jus­tices Clarence Thomas and Sa­muel A. Al­ito Jr. also dis­sented.

The rul­ing was no sur­prise since the jus­tices had stood back in re­cent months and watched as fed­eral judges, state courts, law­mak­ers and vot­ers knocked down the le­gal bar­ri­ers to gay mar­riages in 37 states.

That surge of sup­port for gay mar­riage was set off two years ago when the high court struck down part of the fed­eral De­fense of Mar­riage Act and said the mar­riages of same- sex cou­ples de­served equal dig­nity and re­spect un­der the law.

That de­ci­sion re­solved only a ques­tion of fed­eral ben­e­fits for these cou­ples, but its rea­son­ing spurred judges to void a se­ries of state laws that had lim­ited mar­riage to a man and a woman.

When pressed to de­fend their laws, state at­tor­neys were un­able to of­fer a con­vinc­ing rea­son why com­mit­ted cou­ples, some of them rais­ing chil­dren, should be de­nied a mar­riage li­cense.

Though Fri­day’s de­ci­sion ad­dressed only the ques­tion of same- sex mar­riage, the rul­ing may very well send a le­gal mes­sage through­out the coun­try that dis­crim­i­na­tion based on sex­ual ori­en­ta­tion is on shaky le­gal ground.

Of­ten the court’s land­mark opin­ions ex­tend far be­yond the is­sue de­cided. In the fa­mous 1954 Brown vs. Board of Ed­u­ca­tion case, the jus­tices out­lawed racial seg­re­ga­tion in public ed­u­ca­tion, but that opin­ion was later read by judges to strike down racial seg­re­ga­tion broadly in city parks, swimming pools, bus sta­tions and else­where.

In ad­di­tion to clear­ing the way for same- sex mar­riage na­tion­wide, Fri­day’s de­ci­sion may help end dis­crim­i­na­tion against gays and les­bians in other mat­ters, such as adop­tion and cus­tody rights, le­gal ex­perts say This will have tremen­dous im­pact on fam­ily law in par­tic­u­lar,” said Sarah War­be­low, the top lawyer for the Hu­man Rights Cam­paign in Washington. “This will be a tool to help us be­gin to erad­i­cate those in­stances of dis­crim­i­na­tion.”

She said the rul­ing would help gay- rights ad­vo­cates com­bat more than 115 pieces of leg­is­la­tion that were in­tro­duced in state leg­is­la­tures this year tar­get­ing gay peo­ple.

Theodore J. Boutrous, a prom­i­nent Los An­gles lawyer who was part of the le­gal team that f irst took the gay mar­riage is­sue to the Supreme Court, said the opin­ion “re­jects the no­tion of sec­ond- class cit­i­zen­ship for gay peo­ple. Any law that dis­crim­i­nates against gay peo­ple is go­ing to fall in the face of this rul­ing.”

Gays and les­bians are par­tic­u­larly con­cerned with fam­ily law is­sues be­cause they are three times more likely to be rais­ing an adopted or foster child, ac­cord­ing to a le­gal brief f iled in the case by de­mog­ra­pher Gary Gates of the Wil­liams In­sti­tute at UCLA.

“To the de­gree that gays are stig­ma­tized in cus­tody bat­tles, it feels like that will be harder for it to be a rel­e­vant point,” Gates said in an in­ter­view.

War­be­low and some other le­gal ad­vo­cates, how­ever, in­di­cated they would have liked Kennedy to go even fur­ther in his ma­jor­ity opin­ion and put dis­crim­i­na­tion based on sex­ual ori­en­ta­tion on a par with dis­crim­i­na­tion against racial mi­nori­ties or women.

“We cer­tainly would have liked a clearer guid­ance,” War­be­low said. “That would have made it crys­tal clear that there are vir­tu­ally no cir­cum­stances un­der which the gov­ern­ment can dis­crim­i­nate against gays. With the rul­ing we got to­day, we may have to con­tinue to fight some of those bat­tles in court.” .“david. sav­age@ latimes. com Twit­ter: @ DavidGSav­age tim. phelps@ latimes. com Twit­ter: @ tim­phelp­sLAT

‘ This de­ci­sion af­firms what mil­lions of Amer­i­cans al­ready be­lieve in their hearts: that when all Amer­i­cans are treated as equal, all are free.’

— Pres­i­dent Obama

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